Seitz & Co. v. Buffum & Co.

The opinion of the court was delivered by Rogers, J. — It is the ordinary and common practice of a court of chancery, to continue to add, on motion, parties to a proceeding in that court, until every person interested, or that may be in any way affected by the decree, are brought on the record. Indeed, a court of equity will refuse to proceed to a final disposition of the cause until all persons interested are made parties to the bill. This wise and beneficial practice, however, has never obtained a footing in a court, governed by the technical and narrow principles of the common law. The latter adhere strictly to mere technicalities, at the sacrifice frequently of the justice of the case; an acknowledged evil, which may in most cases be easily obviated by a simple amendment in matters of form, or substance, without injury to a single human being. Aware of the -injustice which a too strict adherence to form is apt to produce, the legislature, and the courts following in their wake, are becoming more liberal on this head; particularly in proceedings commenced before justices of the peace, who for the most part are inobservant of all rules to guide them. The doctrine of amendments, however, although there is an increasing disposition to allow them, has not' yet been carried to the extent of permitting an entirely new party to be added to the suit. The furthest we have yet gone, is, to allow a mistake in the Christian, or surname, or in both, to be corrected on application to the court, as in Harbach v. Knox, Boggs & Co., 6 Barr 377, and in a case not yet reported. But although a new party cannot as yet be added, yet we perceive no objection to an amendment adding a trustee, or legal owner, to the record. It is not in substance, the addition of a new party, but merely the insertion of the name of the person in whom is vested the legal title, held for the use of others beneficially interested in the cause; the [71] matters in controversy remaining as before tbe amendment. But however this may be, tbe amendment here is not an error of which the defendant can with any propriety complain. For I cannot see any objection to the suit as originally instituted, nor do I perceive the necessity of any amendment whatever. The suit was brought before the justice against A. B. Seitz & Co., to recover a balance due on book account, for goods sold and delivered to their trustee by the plaintiffs. The only effect of the amendment is, to bring the trustee on the record, and give an opportunity to take defence for the beneficiaries. By the amendment then, if wrong, no injury is done to any person, and consequently the court will not reverse the judgment. As to the second exception: there is no such variance between the declaration and judgment as calls for the interposition of this court. The amendment goes to the whole record. That it was not actually made, is nothing. ' It is a principle of law well settled, that when leave is given to amend, the court considers the amendment as made. And indeed, if necessary to support the judgment, it would be no great stretch of power to allow the amendment to be now made. The exception, that the defendant is sued as Seitz & Co., without naming the members of the firm, is cured by verdict. This is ruled in Morse v. Chase & Co., 4 Watts 456, and Porter v. Cresson, 10 Serg. & Rawle 259. If a suit is in the firm name, as Seitz & Co., for example, the court will presume it after verdict to be the name of real persons, when the contrary does not appear. The courts make any reasonable presumptions to rid themselves of objections, which do not touch the merits. Judgment affirmed.